Summary: Mrs B complained that the Council had not considered the impact on residents when it approved an application for a phone mast. She says the mast is highly visible and has significantly impacted on her enjoyment of her garden. There was no fault by the Council in how it approved the mast.

The complaint

1. Mrs B complained about how the Council handled approval of telecommunications mast near her home. In particular, she said the Council:
• Failed to consider the impact of the mast on her and other nearby residents; and
• Failed to notify or consult with residents.
2. Mrs B says that she complains on behalf of herself and other residents. She says that as a result of the Council’s shortcomings the enjoyment of their homes and gardens is lost. They are angry and disappointed.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered the information provided by Mrs B. I considered the information provided by the Council including the planning documents. I also considered the law and guidance set out below.
6. Mrs B and the organisation now have an opportunity to comment on my draft decision. I have considered their comments before making a final decision.

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What I found

The law and guidance

7. Not all development needs planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
8. Some permitted development proposals need an application so the council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior notification’ applications.
9. The law says that a mast on a building must be such that the effect on the external appearance of the building is minimised, so far as practicable. A mast must also be such that its visual impact on the surrounding area is minimised, so far as practicable.
10. Regulations set out the minimum requirements for how councils publicise certain planning applications. In this case, the Council had to publicise by either:

• a site notice; or
• serving notice on adjoining owners or occupiers.

11. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the council’s policy on how it will communicate with the public when it carries out its functions. In their SCI policy councils may commit to do more than the minimum legal requirements.
12. The Council’s own SCI (applicable to the time of this application) says that for prior notification applications, it will put up a site notice only. It says it will notify the parish council for information only.

What happened

13. Mrs B lives in a residential area adjoining an industrial estate. In 2020, the Council received a prior notification application to erect a phone mast (in a lattice design) on the industrial area. Mrs B says the mast is 25 metres tall and only 35 metres away from the boundary between the industrial estate and the residential area.
14. The Council considered the application, erected a site notice on the industrial area, consulted the Environment Agency, and notified the ward councillors. The Council received no objections and the Environment Agency had no concerns.
15. The Council issued a decision notice approving the mast and notified the applicant it would not need to submit any further details for approval.
16. Mrs B and other residents did not know about the application. The mast was erected in May 2024. Mrs B complained to the Council that:
• it had not considered the impact on the residents;
• the site notice, being on the industrial estate, was not in a place where many people, including the residents, were likely to see it.
• the Council had not considered the law which says the visual impact of a mast should be minimised. She said this mast is a highly visible tower and is overbearing, particularly affecting their enjoyment of the garden.
• the location plan submitted with the application did not include the residential area and so the Council cannot have properly considered the impact of the mast on the area.
17. The Council responded:
• the applicant had used the prior notification process and did not need planning permission. By this process, the Council cannot consider the impact on residents. It can only consider the impact on any building it is attached to and the visual impact on the appearance of the area.
• The applicant had selected the design of mast as it is a slimline lattice tower and this is less bulky than other designs.
• The plan did not need to include the residential area and was sufficient for the Council to approve the application.
• The Council had erected a site notice and notified ward councillors. As such, this was more than the law required it to do.
• In summary, the mast met the requirements of permitted development and the Council cannot therefore refuse it on the basis of its impact on Mrs B’s use of her home and garden.
18. As part of our investigation, we asked the Council for its planning report. This will usually set out the Council’s assessment of a planning application. The Council has confirmed that at that time, it did not complete a written planning report for prior notification applications. The Council also told us that it does now require these for all applications.

Findings

19. I have considered Mrs B’s complaint to the Ombudsman and her photographs of the mast taken from her garden. I appreciate that the mast is large and visible from Mrs B’s garden.
20. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
21. The Council had to follow the prior notification procedure. This allows it to consider the appearance of the mast and to ensure that its visual impact on the local area is minimised as far as it practicable. The Council cannot consider the impact on Mrs B’s use of her home, as it must for a full planning application.
22. There is no legal duty for the Council to provide a planning report but we usually expect councils to keep written records of their decisions, including reasons for their judgements and the background papers they relied on. The Council has not given us its written assessment of the application made at the time, and ideally it would be able to do so. I note that it has now changed its practices so that it produces a planning report for prior notification applications.
23. In this case, the Council considered and determined the prior notification application. In response to Mrs B's complaint, the Council has explained how it considered the design of the mast, and its impact on the area. Ideally it would have made a written record of the assessment at the time, but had it done so, it is unlikely to have changed the Council’s decision.
24. In any case, our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome. There is no clear fault in how the Council reached its decision.
25. I appreciate that Mrs B would have preferred the Council to consult with residents, or do more to make them aware of the application. However, it met the requirements by putting up the site notice. Mrs B says that the Council did not notify the parish council nor the ward councillors. The Council says it did so, but in any case, the law does not require it to do. In addition, even had the Council consulted residents it is unlikely there would have been a different outcome due to the very limited aspects the Council can consider.

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Final Decision

26. I find no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman